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HomeMy WebLinkAboutAppeal of Denial of Public Assembly and Street Closure.pdfGreen Coalition of Gay Loggers for Jesus Appeal March 22, 2010 Page 1 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Debbie Arkell, Director of Public Services Greg Sullivan, City Attorney Chris Kukulski, City Manager SUBJECT: Appeal of Denial of Public Assembly and Street Closure Request for The Green Coalition of Gay Loggers for Jesus for a car show, bike race, and live music events; and appeal of the start time of an approved Parade, all on July 4, 2010 MEETING DATE: March 22, 2010 RECOMMENDATION: Move to affirm the March 8, 2010 decision of the Director of Public Services to approve a parade permit on July 4, 2010 for 8:30 a.m. to 10:30 a.m. and deny the remaining street closure request. BACKGROUND: This action is quasi-judicial. According to the City Attorney, quasi-judicial determinations must be made on the basis of the record before the Commission at the hearing only. In such a case, the appellant, Brian Leland, bears the burden of demonstrating to you sufficient facts to overturn the March 8, 2010 decision of the Director of Public Services. In addition, the City Attorney advises the Commission to focus solely on the specific relief requested by Mr. Leland as well as a strict application of the specific criteria in the Bozeman Municipal Code for review of street closure and public assembly permits (see discussion below). Brian Leland, on behalf of the Green Coalition of Gay Loggers for Jesus (the “Coalition”), filed a written appeal of the March 8, 2010 denial of a Public Assembly and Street Closure Permit issued by Public Services Director Debbie Arkell for a car show, bike race, and live music events to occur on July 4, 2010. As stated in the attached appeal notice (Exhibit G), the basis for Mr. Leland’s appeal is: 166 Green Coalition of Gay Loggers for Jesus Appeal March 22, 2010 Page 2 1. “We do not believe that our events will be in violation of BMC 12.32.080.A.1. ‘The conduct of the parade or assembly will not substantially interrupt the safe and orderly movement of other pedestrian or vehicular traffic contiguous to its route or location.’ We would be closing a portion of Main Street on a Sunday for a national holiday when deliveries and commercial truck traffic will not be a factor and passenger vehicles will have numerous alterative (sic) downtown routes available. As a community event with a small town/neighborhood flavor we expect many of the participants to walk or ride bikes to the festivities.” 2. “We do not believe that our events will be in violation of BMC 12.32.080.A.4. ‘The Conduct (sic) of the parade or public assembly is not reasonably likely to cause injury to persons or property.’ The car show and bike races will be conducted on different sections of Main Street. We have already agreed to get event insurance for the bike races as was required by staff. The bike races are geared for children and novices so the speeds will be lower than the racers in the Tour de Bozeman downtown bike race event whose street closure was approved by the City of Bozeman.” 3. “The DBA had requested that events not start until 10:00 AM so as not to interrupt breakfast business. The 8:30 closure time was to allow vehicles for the car show to be parked on the side streets between the one ways and Main in preparation for their movement on to Main for display following the parade. Requiring the parade to start before 10:00 will draw customers away from restaurants during the breakfast rush.” On March 11, 2010, Mr. Leland e-mailed Commissioners and Staff that he wanted to clarify the third bullet point of his appeal letter that he would like to “conduct the parade at a time that does not compete with the breakfast business as was requested by DBA.” A copy of the e-mail is attached as Exhibit H. The sequence of events regarding this application, review, denial and appeal are as follows: · A complete application for Parade or Public Assembly Permit to close Main Street from 8:30 a.m. until 5:00 p.m. on Sunday, July 4, 2010 for a “parade, car show, potato cannon competition, live music, bike race” was made by Brian Leland on behalf of the Coalition on February 2, 2010. That application is attached as Exhibit A. · The application was routed to reviewing staff on February 3, 2010. · On February 16, 2010, Mr. Leland came to City Hall and verbally asked the Director’s Administrative Assistant to amend the application. The Director telephoned Mr. Leland to discuss the changes, and expressed concern to him about processing a permit that might not be in its final form. Mr. Leland explained to the Director that the permit is “a work in progress” and that he could not finalize details of the permit until he knew if the permit would be approved. The revisions requested by Mr. Leland at that time were: 167 Green Coalition of Gay Loggers for Jesus Appeal March 22, 2010 Page 3 Ø 8:30 am to 5 pm: Close Main Street from Grand Avenue to Rouse Avenue for the parade and car show Ø 1 pm: Expand the closure from Grand to 5th Avenue to accommodate the bike races; and Ø 5 pm to 9 pm: Open Main Street with the exception of one block for music. Applicant is still working with merchants but the options are: § Close Main Street from Tracy to Grand, and have music at the Willson intersection § Close Main Street from Rouse to Black and have music at the Bozeman intersection · On February 17, 2010, the revisions to the permit were routed to reviewing staff. · On February 24, 2010, Director Arkell e-mailed Mr. Leland with comments made by the reviewing staff regarding the revised application. That e-mail is attached as Exhibit B. · On February 25, 2010, Director Arkell met with Mr. Leland at his request to discuss the comments received. Notes from that meeting are attached as Exhibit C. · On March 1, 2010, during the public comment portion of the City Commission meeting, Mr. Leland provided the Commission with a “heads up” that he had applied for the permit, and the application was an “attempt to head off political confrontation” by holding a community event/celebration. · On March 5, 2010, Mr. Leland sent Director Arkell an e-mail stating, among other things, that modified Sweet Pea Parade regulations should work for the event, and expressing concern about disruption of services at Holy Rosary Catholic Church. Director Arkell responded that at some point, Mr. Leland needed to submit what he wants as a final permit, noting that closing Main Street at 8:30 a.m., as requested in his application, will have an impact on traffic getting to and from the Church for the 9 a.m. and 11:15 a.m. services. Mr. Leland responded that we have what they want for the final permit. A copy of the e-mail is attached as Exhibit D. · On March 8, 2010 Mr. Leland sent the City Commissioners and Staff an e-mail which states in part “we will encourage political entries from candidates and elected officials”, while they “reserve the right to restrict content, signage, and refuse access to the parade route for any unregistered, non-complying and/or inappropriate entry.” This information was not included in the original application. The e-mail is attached as Exhibit E. · On March 8, 2010: Ø The application to close Main Street from 8:30 a.m. until 10:30 a.m. for the parade was conditionally approved. The 8:30 a.m. closure time was the time requested in the permit and confirmed to the Director by Mr. Leland at their February 25 meeting. 168 Green Coalition of Gay Loggers for Jesus Appeal March 22, 2010 Page 4 Ø The application to close Main Street after the parade until 9:00 p.m. for the car show, bike race, potato cannon competition, and live music was denied. A copy of the letter and permit are attached as Exhibit F. · On March 9, 2010, Mr. Leland filed an appeal of the denial of the car show, bike race and live music events with the City Clerk and City Manager. A copy of the appeal is attached as Exhibit G. · On March 11, 2010, Mr. Leland e-mailed Commissioners and Staff that he wanted to clarify the third bullet point of his appeal letter that he would like to “conduct the parade at a time that does not compete with the breakfast business as was requested by DBA.” A copy of the e-mail is attached as Exhibit H. · On March 15, 2010, Staff received an e-mail string from Chris Naumann, Executive Director of the Downtown Bozeman Partnership, between himself and Mr. Leland regarding a starting time for the parade. Mr. Naumann states in the e-mail: “At this point in time, I think the prudent course of action would be to finalize a parade plan with Debbie/City Commission and limit the Main Street closure to a couple of hours… from 8:30-10:30 or 9:30-11:30 or 10:00-12:00. My sense is that one of the earlier two slots might be better for attendance as folks will be heading out to the rivers/mountains/grills closer to 11:00 and noon.” A copy of the e-mail is attached as Exhibit I. Chapter 12.32 of the Bozeman Municipal Code authorizes appeals for public assembly and street closure permits: 12.32.120 Appeal Procedure A. Any applicant shall have the right to appeal the denial of a parade or public assembly permit to the City Commission. The denied applicant shall make the appeal within five days after receipt of the denial by filing a written notice with the City Manager and a copy of the notice with the Clerk of the Commission. The City Commission shall consider the appeal at the next regularly scheduled meeting following the notice of appeal provided that the receipt of the notice is received prior to the deadline for submission of new agenda items. B. In the event that the City Commission rejects an applicant’s appeal the applicant may file an immediate request for review with a court of competent jurisdiction but in no event may the request for review be filed later than thirty days after the Commission’s rejection. Ord. 1458 1 part 1998. Mr. Leland’s appeal met the requirements in §12.32.120.A, above. The next regularly scheduled meeting after the submittal of the appeal notice is March 22, 2010, as the Commission cancelled the March 15, 2010 meeting. 169 Green Coalition of Gay Loggers for Jesus Appeal March 22, 2010 Page 5 Standards for Issuance. Section 12.32.080 of the Bozeman Municipal Code provides the following standards for issuance of a public assembly permit: 12.32.080 Standards for Issuance A. The City Manager shall issue a permit, subject to any conditions he deems necessary and reasonable, as provided for herein when, from consideration of the application and for such other information as may otherwise be obtained, he finds that: 1. The conduct of the parade or public assembly will not substantially interrupt the safe and orderly movement of other pedestrian or vehicular traffic contiguous to its route or location; 2. The conduct of the parade or public assembly will not require the diversion of so great a number of city police officers to properly police the line of movement and the areas contiguous thereto as to prevent normal police protection of the city; 3. The concentration of persons, animals, and vehicles at public assembly points of the parade or public assembly will not unduly interfere with proper fire and police protection of, or ambulance service to, areas contiguous to such public assembly areas; 4. The conduct of the parade or public assembly is not reasonably likely to cause injury to persons or property; 5. The parade or public assembly is scheduled to move from its point of origin to its point of termination expeditiously and without unreasonable delays en route; 6. Adequate sanitation and other required health facilities are or will e made available in or adjacent to any public assembly areas; 7. There are sufficient parking places near the site of the parade or public assembly to accommodate the number of vehicles reasonably expected; 8. The applicant has secured the police protection, if any, required under Section 12.32.060; 9. Such parade or public assembly is not for the primary purpose of advertising any product, goods or event that is primarily for private profit, and the parade itself is not primarily for profit. The prohibition against advertising any product, goods or event shall not apply to the signs identifying organizations or sponsors furnishing or sponsoring exhibits or structures used in the parade; 10. No parade or public assembly permit application for the same time and location is already granted or has been received and will be granted; 11. A parade or public assembly permit application for the same time but for a different location is already granted or has been received and will be granted, and the police resources required for that prior parade or public assembly are so great that in combination with the subsequent proposed application, the resulting deployment of police services would have an immediate and adverse effect upon the welfare and safety of persons and property; and 12. No event is scheduled elsewhere in the city where the police resources required for that event are so great that the deployment of police services for the proposed parade or public assembly would have an immediate and adverse effect upon the welfare and safety of persons and property. 170 Green Coalition of Gay Loggers for Jesus Appeal March 22, 2010 Page 6 These standards were reviewed for the approval of the parade portion of the permit, as well as for the denial of the street closure for the car show, bike races, potato cannon competition, and live music. Review of the street closure portion of the application for the parade included review of past closures for parades, and found that the Sweet Pea (Saturday), MSU Homecoming (Saturday), and (new this year) Memorial Day (Monday) parades all assemble between 8:30 and 9:00 a.m. The 2009 Bozeman High School Homecoming Parade (Saturday) assembled at 10 a.m. Last year was the first year in many that the High School parade was not on a Friday afternoon. The Coalition’s requested 8:30 a.m. assembly time was consistent with past parade approvals. Review of the street closure portion of the application for the car show, bike races, potato cannon competition and live music found that closing nine blocks of Main Street through the Historic Business District for a privately organized event for the 12.5-plus hours requested will substantially interrupt the safe and orderly movement of other pedestrian or vehicular traffic on Main Street (12.32.080.A.1); that conduct of the public assembly may be likely to cause injury to persons or property given the variety of events planned - i.e. “show cards” along with “bikes (going fast) 35 mph”, and there was no clear plan for how the car show participants will enter the area after the parade without disrupting or blocking traffic on streets adjacent or perpendicular to Main Street (12.32.080.A.4). Mr. Leland’s appeal does not appeal the denial of the potato cannon competition. As of the writing of this report, written public comment has been received from five members of the public. A copy of each comment is attached as Exhibit J. FISCAL EFFECTS: The required $100 application fee was submitted. Attachments: Exhibit A: Application for Parade or March/Run/Walk/Bike Event Exhibit B: February 24, 2010 e-mail from Director Arkell to Mr. Leland Exhibit C: Director Arkell notes from February 25, 2010 meeting with Mr. Leland Exhibit D: March 5, 2010 e-mail exchange between Director Arkell and Mr. Leland Exhibit E: March 8, 2010 e-mail from Mr. Leland to City Commissioners and Staff Exhibit F: Application Decision letter from Arkell to Leland approving parade and denying other events dated March 8, 2010 Exhibit G: Appeal letter from Mr. Leland date-stamped received March 9, 2010 Exhibit H: March 11, 2010 e-mail from Mr. Leland to Commissioners and Staff clarifying appeal letter Exhibit I: March 11-15, 2010 e-mail exchange between Director Arkell, Mr. Leland and Chris Naumann, DBP Exhibit J: Written Public Comment Cc: Brian Leland Report compiled on March 17, 2010 171 Green Coalition of Gay Loggers for Jesus Appeal March 22, 2010 Page 7 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193